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Trump's EPA pick poised to survive Senate fight, but his brewing battle with California will be harder to win

Sen. Bernie Sanders questions EPA Administrator Nominee Scott Pruitt about climate change. (Jan. 18, 2017)

President Trump's nominee to run the Environmental Protection Agency survived a rancorous committee vote Thursday, putting him on the path to full Senate confirmation and a confrontation with California.

Scott Pruitt, who oil and gas companies are betting will help them reassert dominance over the energy economy, has cast doubt on California's power to force automakers to build more efficient, cleaner-burning cars.

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But he soon may learn that battles like the one he appears poised to launch can be full of unpleasant surprises.

The landmark environmental policy that the EPA nominee called into question — giving California unique authority to set tough rules for car and truck emissions — has proved resilient. So has California.

Many such provocations by past administrations eager to flex their executive muscle have gone sideways. They have bogged previous White Houses down in years-long, politically bruising regulatory and legal disputes, during which the president who set out to teach an early lesson to assertive states ends up getting schooled by them.

"Announcing that you are going to give your supporters what they want by picking off a few high-profile policies and rescinding them is really easy," said Jody Freeman, a professor at Harvard Law who served as White House counselor for energy and climate change under the previous administration. "Doing it is much harder."

California is particularly well-prepared, after honing its skills fighting Washington during the presidency of George W. Bush. The target Pruitt is eyeing may be alluring for conservatives and climate skeptics, but it is well-fortified. The federal authority California was granted to set its own, tough standards for vehicle emissions dates back 50 years, to when it was written into the Clean Air Act.

It since has become a foundation of California's fight to curb climate change. The Bush administration's resistance to letting California use the waiver to regulate greenhouse gas emissions from vehicles touched off a fierce court fight that ultimately strengthened California's position and could make the policy impossible to water down, short of an unlikely congressional rewrite of the iconic Clean Air Act.

The California standard the Bush White House resisted ultimately got adopted for the entire nation when Barack Obama took office. The danger for California now is that the Trump administration looks inclined to move in a different direction, opting for federal rules weaker than those California wants. If it does, California almost certainly would invoke its waiver to keep the tougher standard in place, as would a dozen other states that traditionally have exercised their right under federal law to embrace California's rules.

Roughly 40% of American cars are sold in California or in a state following its lead. So the new administration's power to ease the regulatory burden on automakers is severely limited unless it can force California to go along. Pruitt suggested he might just try. If he does, the clash will be monumental.

Pressed multiple times during his confirmation hearing about whether he would challenge California's authority to keep its own rules, Pruitt demurred, saying that would be decided through an administrative process. "One would not want to presume the outcome," Pruitt said.

The performance moved former California Gov. Arnold Schwarzenegger to pillory the incoming EPA administrator. "My Republican colleague here is all about states' rights — except the right to clean our air & save lives from pollution," Schwarzenegger posted on Facebook soon after writing, "CA has won this battle before and we will win again if necessary."

That is the prevailing view in Sacramento, where the seasoned environmental litigators at the state Justice Department already are mapping out strategy and former U.S. Atty. Gen. Eric Holder has been hired to confront the Trump administration on exactly this type of threat. Unwinding environmental policy is particularly tough. The long slog of hearings, scientific determinations and public review periods that went into creating the policy get reopened anew, leaving ample openings for environmentalists to dig in and slow everything down.

Defenders of the California policy point to how the Bush administration ultimately was humbled by its effort to undermine it. And over the years, a string of aggressively anti-regulation Cabinet officials like Pruitt got tangled in their own efforts to dismantle similar high-profile environmental restrictions.

A determined effort by the Bush administration to jettison the "Roadless Rule" that put 58 million acres of forestland off-limits to roads and logging failed after a protracted legal battle. That administration also abandoned its push to rollback new standards for arsenic in drinking water in the face of a public backlash.

Some of Ronald Reagan's biggest political headaches early in his time in Washington stemmed from protracted environmental fights.

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"Under President Reagan, under George W. Bush, when Newt Gingrich was House speaker, there were similar efforts," said David Goldston, director of government affairs at the Natural Resources Defense Council. "All those efforts foundered, and the basic laws were left unscathed. We think that will happen again."

Even so, California is in for a rough stretch. It will be investing considerable effort in fighting with Washington instead of working with it to advance mutual interests. State officials may need to adjust their path to fulfilling ambitious goals on climate change as the state's longtime partnership with the EPA gives way to hostility.

"It could certainly impede California's efforts," said Richard Frank, an environmental law professor at UC Davis.  At stake is the state's vision for building on the landmark climate action Schwarzenegger championed, which is expected to successfully bring California's emissions down to the levels they were at in 1990 within the next three years. A new state law aims for an additional 40% cut on top of that by 2030.

Stringent fuel-efficiency standards are essential to reaching that goal. Putting more zero-emission vehicles on the roads is also a key part of the plan, and California may need EPA cooperation to do it. Environmentalists are concerned that the state's current incentive program isn't strong enough to reach its target of 4.2 million electric, hydrogen-powered and plug-in hybrid cars in the state by 2030. Right now, there are 265,000. But changing the program likely would require the federal government's blessing, and that now looks unlikely.

"Because of the hostility of the Trump administration, none of us think it's a good time to submit a waiver request," said Bill Magavern, policy director for the Los Angeles-based Coalition for Clean Air.

But while California may be losing a potent ally in Washington, it is gaining others around the world. Auto industry analysts say increasing appetite for zero-emissions vehicles in other countries will keep pressure on automakers to build and improve them, even if Washington doesn't. And manufacturers are not likely to retreat from their plans to aggressively market the vehicles over the next few years, the analysts say, after having invested so heavily in them at the behest of state and federal regulators.

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The open question is whether they keep it up over the long run. "If there is no longer the policy pressure to make these vehicles, what will happen in five years when it is time to enter a new cycle of models?" said Alejandro Zamorano, an analyst at Bloomberg New Energy Finance. "Will there be less available in California? Even if there is demand, will you be able to buy them?"

That ultimately may depend on how successful the state is at standing its ground with Trump's EPA.

Halper reported from Washington, D.C., and Megerian from Sacramento.

Follow me: @evanhalper

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